Solicitor general weighs in on ‘Dancing baby’ case
The US acting solicitor general has urged the Supreme Court to deny the petition in the ‘Dancing baby’ copyright case.
The court had asked the government to weigh in on the long-running saga in October last year.
Rights group the Electronic Frontier Foundation (EFF) filed a petition for a writ of certiorari in August 2016 on behalf of Stephanie Lenz.
Lenz had uploaded a short video of her son dancing to Prince’s “Let’s Go Crazy” to YouTube a decade ago.
Universal then sent YouTube a take-down notice under the Digital Millennium Copyright Act (DMCA).
On behalf of Lenz, EFF sued Universal for wrongfully targeting what she thought was lawful use, and the case ended up at the US Court of Appeals for the Ninth Circuit.
The Ninth Circuit held that copyright owners must consider whether allegedly infringing content has been used fairly before requesting it be taken down from websites.
However, it added that as long as a copyright owner has a good-faith belief that it will prevail against a fair use claim, that is sufficient for filing a request.
In a brief filed on Thursday, May 4, Jeffrey Wall, the acting solicitor general, said: “Even if a question concerning the mental state required for DMCA liability otherwise warranted this court’s review, this case would not be an appropriate vehicle in which to consider it.”
He added that the Ninth Circuit had “erroneously assumed” that a copyright owner may be held liable under section 512(f) of the DMCA for knowingly misrepresenting that it had a “good-faith belief” that the challenged material was infringing.
Wall claimed that the court’s analysis suggests that a copyright owner who sends a take-down notice without conducting a fair use enquiry may be held liable for that omission alone, whether or not the challenged material is actually infringing.
“That approach cannot be reconciled with the text of section 512(f), which imposes liability on a copyright owner who ‘knowingly materially misrepresents’ that the challenged ‘material or activity is infringing’,” he added.
Wall took office on March 10 this year.
Corynne McSherry, a lawyer at EFF and representative of Lenz, said: "We are disappointed that the solicitor general did not support certiorari given the importance of this issue for millions of internet users."
Join us for a FREE webinar - The Halo effect: walking the wilfulness tightrope - on May 16
Today’s top stories:
Undercover ICE operation sees two indicted for counterfeit airbags
Michael Best boosts IP practice with new partner
Federal Circuit affirms patent invalidation after Volkswagen settlement
Brooklyn café accuses Starbucks of stealing its unicorn
Did you enjoy reading this story? Sign up to our free daily newsletters and get stories like this sent straight to your inbox
